(Super. Ct. No. 10F08043)
The opinion of the court was delivered by: Nicholson , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Petitioner Saterial Thomas has been incarcerated since 1994 for second degree murder. In 2010, the Board of Parole Hearings (Board) denied parole, finding that Thomas is currently dangerous. Thomas filed a petition for writ of habeas corpus, and the trial court, after reweighing the evidence, granted the petition.
We reverse because the Board properly relied on evidence that Thomas is currently dangerous.
On July 31, 1994, Thomas, 18 years old at the time, participated in a robbery that resulted in the shooting death of one of the victims.
According to the probation report, Thomas and three other men (Richard Gonzalez, Leo "Red" Doley, and Melvin Smith) decided to rob the employees at a Burger King. The men agreed that the employees would not resist because the employees were instructed to lie down and give up the money. Gonzalez obtained a gun and gave it to Doley. The men entered the Burger King with nylon stockings over their heads. The assistant manager was taken to the office, where he handed over some money and then was hit in the head. The manager tried to escape out the front door, but he was shot from behind by Doley. The victim died the next morning from loss of blood.
Later the same evening, Thomas and the others went to Domino's Pizza. A shot was fired at an employee's head, but it missed the employee and hit a pizza tray. Another shot was fired, hitting the employee's pants, but not his leg.
Thomas was arrested on August 3, 1994, and has been incarcerated ever since.
Thomas pleaded guilty to second degree murder (Pen. Code, § 187, subd. (a)) with an arming enhancement (Pen. Code, § 12022, subd. (a)(1)). In exchange for his guilty plea, counts of robbery, assault with a deadly weapon, attempted robbery, and assault with a firearm were dismissed. The court sentenced Thomas, under the agreement, to a state prison term of 15 years to life for second degree murder, plus one year for the arming enhancement.
The Board met on July 7, 2010, to consider setting a parole release date. It relied on, among other documents, the probation report prepared before Thomas's sentencing, the appellate court opinion after his conviction, and psychological assessments done by Dr. John J. Wicks in 2009 and Dr. M. Geca in 2010.
Dr. Wicks reported in 2009 that, before Thomas's incarceration, he used marijuana regularly and drank, sometimes heavily. He participated in AA (Alcoholics Anonymous) and NA (Narcotics Anonymous) while incarcerated. Thomas stated that his coperpetrators had been drinking the day of the crimes, but he denied drinking that day. He had two serious write-ups in prison for mutual combat in 1999 and 2000. He also had been written up for repeatedly failing to report for vocational training (1999) and stealing food (2003).
Thomas claimed to have completed vocational certificates in plumbing, electrical wiring, painting, building maintenance, power tools, general shop safety, meat cutting, sanitation, basic electronics, and business management.
Concerning the crimes, Thomas stated that he was the lookout and getaway driver. He had taken only two or three steps into the Burger King restaurant when he heard the shooting. He ran back to the car and, after the other perpetrators joined him, he drove away. He was also the driver for the Domino's Pizza crimes. Concerning Thomas's motivation for the crimes, Dr. Wick's report states: "Money had been the primary reason for his participation. The inmate stated that he and his girlfriend were very stressed out about their money problems. Work had been up and down. He had started drinking."
Dr. Wicks performed risk assessments and concluded that Thomas was a very low risk of future violence, which Dr. Wicks attributed to Thomas's improved behavior in custody, but that he was still a medium risk for general criminal recidivism. Dr. Wicks noted some concerns with Thomas's parole plans. He also noted that, although Thomas had been smoking marijuana and drinking before the murder, he still minimized the effect of alcohol on his judgment. Thomas's risk of violent recidivism would likely increase if he began using "intoxicating substances" again.
The Board granted parole in 2009, but the Governor reversed the decision. He cited Thomas's failure to appear for a work assignment in 2006, which indicated to the Governor that he might not be able to maintain gainful employment.
During the psychological assessment in 2010, Dr. Geca asked Thomas about the Governor's decision. Dr. Geca's report states: "Although [Thomas] expressed disappointment and sadness over the decision, he offered no insight regarding the Governor's concerns. Follow up questions were asked, and he replied, 'I guess, he was concerned with my history, and he did not like my prison conduct.' He did not state whether the Governor's concerns were warranted and he did ...